MANAK CHAND Vs. GOVARDHAN DAS & ORS.

JUDGEMENT

(1.) Being aggrieved by the judgment -decree dated 23.03.2000, passed by District Judge, Balaghat in C.A. No.78 -A/99 reversing the judgment -decree dated 22.07.93 passed by III Civil Judge Class II, Balaghat in C.S. No. 292 -A/87, plaintiff/appellant has preferred this appeal u/s 100 of the C.F.C. The appeal has been admitted on the following substantial questions of law : -

(2.) COULD the learned Lower appellant Court consider the agreement dated 05.05.95 purported to be an agreement for sale in favour of Kishore Kumar who was not a party to the Civil Suit without any trial on the issue particularly when no sale or assignment was complete and reverse the findings recorded by the Learned Trial Court in which he did not note any fault ? Has the First Appellate Court interpreted the written statement and evidence in holding that Gowardhan Das (respondent) has not parted with possession of the suit shop even when he was come out of the partnership ? Facts in brief are, the suit house No.19, Main Road Balaghat, fully described in para 1 of the plaint was let out to defendant/respondent Gowardhan Das in the year 1970 on a monthly rend of Rs.250/ - RM. Gowardhan Das had a cycle shop known as Goyal Cycle Stores. In the year 1977 -78, defendant/respondent Gowardhan Das constituted a partnership firm consisting of himself, Kamal Chand and Rajkumar as its partners. This firm was subsequently dissolved on 01.11.86, whereby defendant/respondent Gowardhan Das have retired. The firm then was owned by defendant/respondent Kamal Chand. Defendant/respondent Kamal Chand is in possession of the suit house and is running a shop of his own since then. Plaintiff/appellant filed C.S. No.292 -A/87 in the court of III Civil Judge Class II, Balaghat for seeking eviction of defendant/respondents u/s 12(1)(b)(f) of the M.P. Accommodation Control Act on the ground that the defendant/respondent Gowardhan Das being a tenant had unlawfully sublet parted with possession of the suit house to defendant/ respondent and that the suit house is bonafide required by the plaintiff/ landlord for opening his own shop of motor parts as he has no other alternative accommodation of his own. The suit was resisted by the defendant/respondents stating inter alia that Gowardhan Das was tenant of the plaintiff/appellant since 1970 and was running a shop of his own known as Goyal Cycle Stores. On constitution of partnership firm, the rent was paid in the name of M/s Goyal Cycly Stores. Defendant/respondent Kamal Chand was a partner of the firm. On 01.11.96, Gowardhan Das, Raj Kumar retired from the partnership firm since then Kamal Chand became owner of the shop M/s Goyal Cycle Stores. The suit house is not bonafide required by the plaintiff -landlord as during the pendency of C.A. No. 78 -A/99, he has executed an agreement dated 05.05.95 to execute a sale deed of the suit house in favour of one Kishore Kumar S/o Dwarkaprasad Gupta.

(3.) The Civil Judge in C.S. No. 292 -A/87 vide judgment dated 22.07.93 categorically held that defendant/respondent Gowardhan Das was inducted into the tenancy in the year 1970. Defendant/respondent Gowardhan Das was running a shop of his own known as Goyal Cycle Stores and in the year 1977 -78, constituted a partnership firm, wherein Kamal Chand and Rajkumar were also inducted as partners. The partnership firm was dissolved on 01.11.86, whereby Gowardhan Das and Raj Kumar have retired and defendant/ respondent Kamal Chand continued in possession of the suit house where he is running a shop of his own known as M/s Goyal Cycle Stores. This act on the part of defendant/respondent Gowardhan Das amounts to creation of sub tenancy and parting with possession of the tenanted premises to defendant/ respondent Kamal Chand. The Civil Judge further held that the suit house is bonafide required by plaintiff/respondent as his shop of motor parts is in the premises which is also been used by his son for other business. Accordingly, the suit was decreed u/s 12(1) (b) (e) of the M.P. Accommodation Control Act. Being aggrieved by the defendant/respondents preferred C.A. No. 78 -A/99. With reference to agreement dated 05.05.95, executed by plaintiff/appellant in favour of Kishore Kumar S/o Dwarkaprasad, the first appellate court concluded that alleged need of the plaintiff/appellant has extinguished, since he has entered into an agreement of sale with Kishore Kumar. It was held that a partnership firm was constituted in the year 1977 -78, where defendant/ respondent Kamal Chand was a partner. The business of the firm in the name of M/s Goyal Cycle Stores continued and on dissolution, Kamal Chand became the owner of the shop. Kamal Chand continued in illegal possession. As such the first appellate Court allowed the appeal and dismissed the suit for eviction u/s 12 (1) (b) (f) of the M.P. Accommodation Control Act.